State v Kumar - Summing Up [2020] FJHC 883; HAC88.2016 (17 September 2020)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO. HAC 88 OF 2016

BETWEEN

STATE

AND

ARUN KUMAR

Counsel : Ms. P. Lata for the State
Mr. I. Khan with Mr. T. Kaloulasulasu for the Accused

Hearing on : 14^th& 15^th of September 2020
Summing up on : 17^th of September 2020

SUMMING UP

(The name of the complainant will be suppressed and will be identified as the K.R.)

Ladies and gentleman assessors;

1. It is now my duty to sum up the case to you. Your opinion is much important to me and I will be considering your opinion to a great extent in preparation of my judgment. In a short while, I will direct you on the law that applies in this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the assessors of facts.
   
2. As the representatives of the society, your duty here is sacred. Your role is to assist this legal system to serve justice. In doing so, you are guided by two equally important principals of prudence. To wit;
   
   1. If a person has committed an offence, he should be meted out with an adequate punishment.

In other words, if you are sure that the accused has committed the alleged offence, then it is your duty to find him guilty. If an offender goes scot-free, he‘ll be ridiculing this legal system. It is your duty to not to let that happen.

ii) An innocent person should never be punished.

There is a saying that it is better to let 10 offenders go free than to punish one innocent person. That is, unless you are very sure that the accused has committed the alleged offence, you should not find him guilty.

If any of the said principles are violated, it would amount to a failure of the system, thus you have failed in your duty to the society. Having reminded you of your duty let me proceed.

3. Evidence in this case is what the witnesses said from the witness box inside this court room and the admissions made. As I have stated to you in my opening address, your opinion should be based only on them. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard that information.
   
4. A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the Counsel for the prosecution or for the defense are not evidence. A suggestion made by a counsel during the examination of a witness is not evidence unless the witness accepted that suggestion. The arguments and comments made by counsel in their addresses are not evidence. You may take into account those questions, suggestions, arguments and comments when you evaluate the evidence only to the extent you would consider them appropriate.
   
5. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. You must approach the available evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feelings of sympathy for or prejudice against, the accused or anyone else. Your emotions should not influence your decision.
   
6. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court, their behavior when they testified and how they responded during cross-examination. Applying your day to day life experiences and your common sense as representatives of the society, consider the evidence of each witness and decide how much of it you believe. You may believe none, a part or all of any witness’ evidence.
   
7. When you assess the testimony of a witness, you should bear in mind that a witness may find this court environment stressful and distracting. Witnesses have the same weaknesses that we all may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment. Sometimes a witness may have other concerns when giving evidence. A witness may be worried that the evidence would incriminate him or reveal a safely guarded secret. Or else he/she might honestly forget things or make mistakes regarding what he/she remembers.
   
8. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. You may also find inconsistencies between the evidence given by different witnesses. This is how you should deal with inconsistencies. You should first decide whether that inconsistency is significant. That is, whether that inconsistency is fundamental to the issue you are considering. If it isn’t then you can disregard that inconsistency. If it is, then you should consider whether there is any acceptable explanation for it. If there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you should not expect a witness to have a photographic memory or every detail to be the same from one account to the next.
   
9. However, if there is no acceptable explanation for the inconsistency which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistencies in the evidence given by a witness influence your judgment on the reliability of the account given by the witness is a matter for you to decide.
   
10. Therefore, if there is an inconsistency that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of the witness’ evidence is inaccurate; or you may accept the reason the witness provide for the inconsistency and consider him/her to be reliable as a witness.
    
11. You may also consider the ability and the opportunity a witness had, to see, hear or perceive in any other way what the witness said in evidence. You may ask yourself whether the evidence of a witness seem reliable when compared with other evidence you accept.
    
12. Based on the evidence you decide to accept, you may decide that certain facts are proved. You may also draw inferences based on those facts you consider as directly proved. You should decide what happened in this case, taking into account those proved facts and reasonable inferences. However, when you draw an inference you should bear in mind that, that inference is the only reasonable inference to draw from the proved facts. If there more than one reasonable inference to draw, against the accused, as well in his favor, based on the same set of proved facts, then you should draw the most favorable inference to the accused.
    
13. As a matter of law you should remember that the burden of proof always rests on the prosecution. An accused is presumed to be innocent until proven guilty. This means that it is the prosecution who should prove that an accused is guilty and the accused is not required to prove that he is innocent. The prosecution should prove the guilt of an accused beyond a reasonable doubt, for you to find him guilty. That is, you must be sure of the accused person’s guilt.
    
14. In order to prove that an accused is guilty, the prosecution should prove all the elements of the offence against the accused beyond reasonable doubt. If you have a reasonable doubt on whether the prosecution has proved a particular element of the offence against the accused, then you must give the benefit of that doubt to the accused and find the accused not guilty. A reasonable doubt is not a mere or an imaginary doubt but a doubt based on reason. I will explain you the elements of the offences in detail in a short while.
    
15. You are not required to decide on every point the Counsels in this case have raised. You should only deal with the offences the accused is charged with and matters that will enable you to decide whether or not the charges are proved against the accused.
    
16. You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion. But it is not a must.
    
17. Let us look at the Information. The Director of Public Prosecutions has charged the accused of two counts of rape.
    

COUNT 1
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (b) and (3) of the Crimes Act of 2009.

Particulars of Offence

Arun Kumar, on the 23^rd day of April 2016 at Nadi, in the Western Division, penetrated the vagina of K.R., a child under the age of 13 years, with his fingers.

COUNT 2
Statement of Offence
RAPE: Contrary to section 207 (1) and (2) (b) and (3) of the Crimes Act of 2009.

Particulars of Offence

Arun Kumar, on the 23^rd day of April 2016 at Nadi, in the Western Division, penetrated the vagina of K.R., a child under the age of 13 years, with a pen.

18. Now I will deal with the essential elements of the offence of Rape alleged in the count. Section 207(1) of the Crimes Act reads as;
    

207. —(1) Any person who rapes another person commits an indictable offence.

Section 207 (2) (b) of the Crimes Act reads as;
(2) A person rapes another person if —

(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent;

Section 207 (3) states that;

(3) for this section, a child under the age of 13 years is incapable of giving consent.

19. Accordingly, in this case, to prove the offence of Rape as for the alleged count the prosecution must prove the following elements beyond a reasonable doubt.

(i) The accused;

(ii) penetrated the vagina of K.R. with his fingers or a pen (as the case may be),

(iii) at that time K.R. was under the age of 13 years.

20. The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond any reasonable doubt that the accused and no one else committed the offence. The defence does not challenge the identity of the accused. But you should be satisfied that the accused and no one else committed the alleged offence.

21. The second element is penetration of the K.R.’s vagina with the accused’s fingers or with a pen. The law states, the slightest penetration is sufficient to satisfy this element of penetration. This element is complete on penetration to any extent and it is not necessary to have evidence of full penetration. The prosecution has to prove this element beyond reasonable doubt.
    
22. The third element is that K.R. was below the age of 13 years at the time of the alleged incident. This issue is admitted by the accused and you should not look for any further proof of this element.
    
23. If you find a reasonable doubt in respect of any of the first two elements set out above, you should find the accused not guilty of the alleged counts of Rape.
    
24. The following were recorded as the admitted facts by the prosecution and the defense.
    1. The accused in this matter is Arun Kumar, 46 year old driver of Uciwai, Nadi at the time of the offence.
    2. The complainant in this matter is K.R, 08 years old, student of Salovi, Nadi at the time of the alleged offence.
       

These admitted facts need no further proof. You should consider them as already proved. If there happens to be any inconsistency between the admitted facts and the given evidence, the admitted facts should prevail.

Summary of Evidence

25. The PW1, K.R. is the sole witness of the alleged incident, for the prosecution. The law requires no corroboration. Therefore you can act on the evidence of a sole witness. However, my direction is that if you are to rely on a sole witnesses’ evidence you must be extremely cautious of the credibility and the dependability of such evidence. Her evidence is that;
    
    1. Presently she is 12 years old and a year 7 student at Nadi Sangam School. She lives in Solovi, Nadi, since she was a kindergarten student.
    2. She lives with her mother Babita Lata, brother Kunal Abhikesh and step father Anil Kumar.
    3. By the 23^rd of April 2016, she has lived there with her mother, brother and the other step father, Arun Kumar, the accused. She has known her other step-father Arun Kumar since she was in the Kindergarten and used to treat him as her biological father.
    4. The 23^rd of April 2016 was a Saturday. That evening the accused has come home and asked her to accompany him to a shop. She cannot recall the time but it was getting dark at that time.
    5. He has taken her in his car and having gone to a ‘dark place’ asked her to remove her panty. When she did not do it, he has removed it and put his finger in and out of her private part. It is conceded by the defence that what she meant by the private part is her vagina. She has asked papa to not to do it as it was painful. But he has kept on doing it. After a while he has taken out his finger and inserted a pen into her vagina. It has really gone in and she has shouted in pain.
    6. Then he has taken it out and asked her to wear her panty and taken her to the shop and bought her a blitz and got himself a cool pop. While going in the car, he has told her to not to tell her mom and if she asks why they got late, tell her that one of the friends met them.
    7. The closest house to the said ‘dark place’ was below the level of the road and was about 15 meters away. At the time of the incident she has shouted but the windows were wound up and the car doors were locked. There was no one nearby.
    8. Once they went home she has gone and slept. The next morning when she woke up her papa, the accused has gone to work and when she sat down to eat her mother has spotted blood on her panty and asked her. Then she has got scared and told the mother what her papa did to her. The mother has examined her and taken her to the police station to report the matter. From the police station she was taken to the hospital for a medical and thereafter they were brought home by the police. She has shown the ‘dark place’ described by her before, to the police on their way back.
    9. The PW1 identifies the accused, Arun Kumar as her papa, who did the said act to her.
       

26. In answering the cross examination by the learned counsel for the accused, the witness states;
    
    1. Before the incident happened in 2016, the accused was like a real papa to her and he looked her after very well. Every time he came home she used to show him her colorings.
    2. Prior to the 23^rd of April 2016, he never touched her private parts. She admits that sometimes the accused used to fight with her mother. But, denies that they fought over an issue over a neighbor. She admits that a neighbor brought her some stickers.
    3. She further admits that the accused told her to tell the truth about who came to their house and promised that he will take her to the Burger King. She denies going to the Burger King on that day.
    4. The statement was recorded from her on the 24^th of April 2016. A copy of that was given to her on the last Friday by her lawyer and she has read it but did not discuss the incident with her mother.
    5. When examined by the doctor she has told the doctor what happened and her mother has explained them to the doctor.
    6. Having returned home with the accused she has slept. She states that she cannot recall going anywhere else that night. She has slept that night but, had a little bit of pain.
    7. Her house is a two bedroomed house and her mom is in one and her brother is in the other. At breakfast her mother has noticed blood on her panty and has taken her to her room and asked about it. Then the mother has taken her blood stained panty and taken it to the police.
    8. She further states that her mother took her to the room first having questioned her then took her to the bathroom to examine her.
    9. She denies the suggestion that the accused did not do the alleged act.
       
27. In answering the re-examination by the learned counsel for the prosecution, the witness states that;
    1. She has not been engaged in any sports prior to the 23^rd of April 2016.
    2. Apart from the dark place and the shop, she has not gone anywhere with the accused on that day.
       
28. The PW2 called on behalf of the prosecution was Ms. Babita Lata. She is the mother of the PW1. Her evidence was that;
    1. She works at Pacific Tourist store, a garment factory at Nadi Town. She has three children and K.R. her youngest child is a daughter aged 13 years now.
    2. She lives in Solovi with her second son and the daughter. In 2016 she was in a defacto relationship with Arun Kumar. She was in that defacto relationship since 2010. Arun Kumar used to come to her house some times during the weekdays and mostly during the weekends.
    3. On the evening of 23^rd of April 2016, she was at home with her 2 kids and Arun Kumar. Arun Kumar came home around 6.30 pm and having talked for about ½ an hour, he has said “I’ll go to the shop and take Gudiya with me”. Gudiya is the pet name for K.R. She said Okay and he has taken about 45 minutes to come back. It takes only 5-10 minutes to go to the shop. When returned she has asked ‘why were they late’ and then, Arun has told her that he met a friend of his at the shop.
    4. When came back from the shop, K.R. has been quiet and talked little. When asked her to eat, she has eaten and having watched the TV for a while gone to sleep.
    5. She has woken around 6.00-6.30am the following day and Arun told has her that he is going home and left around 7.00am. She has woken up K.R. to have breakfast around 8.30am and when having breakfast at around 9.00am, seated on the floor she has spotted a blood stain on K.R.’s panty. When she asked about the stain, K.R.’s expression changed and started crying and told her ‘while going to the shop last night papa took her to a place and put his finger and the pen. She has asked her how was it done and K.R. has told her that first he put her in to the back seat and removed her panty and then used his finger first. When she said it is painful, he has stopped that and put his pen in. When she cried, he has told her ‘Okay, wear your panty’ and after that they have come home.
    6. Then she has taken K.R. to the police station to lodge a report. She has taken the clothes which were worn by K.R. too. She has handed them over to the police. At the police station their statements were recorded and thereafter they were taken to the hospital. The doctor has examined K.R. in front of her.
    7. Prior to the incident, the relationship between K.R. and the accused was just like the father and daughter and there had been no complaints of any incident prior to the alleged incident.
       
29. In answering the cross examination by the learned counsel for the accused, the PW2 stated that;
    1. She admits giving her statement to the police on 24^th of April 2016. In the said statement it is not mentioned that K.R. told her that she was taken to the back seat of the car at the time of the alleged incidents. She states that she has mentioned that to the police and doesn’t know why it was not recorded there.
    2. When suggested that she wanted to break the relationship with Arun, she denies that and states that the relationship between them was good and there was no problem in it. She did not want to finish it.
    3. She admits that Arun told her that if she breaks the relationship and settles with someone else he will kill her.
    4. When suggested that on the day of the incident after returning from the shop, three of them went to her earlier workplace, a laundry to settle a loan, she states that it was the previous Saturday and not the 23^rd of April 2016, the Saturday in issue.
    5. When she saw the blood on K.R.’s panty she has taken her to the bathroom to take off the panty. She further states that by the time K.R. has told everything to her.
    6. She admits that prior to the alleged incident, Arun was a good father and he was very close to K.R.
    7. When suggested that the injuries on the K.R. were caused by her, she denies it and states that no mother would do such things to her own daughter.
    8. On the day of the alleged incident, prior to going to the shop, Arun and K.R. were in the living room and the TV was on. After a while Arun came and told that they are going to the shop.
    9. At the hospital the doctor spoke to her daughter and also to her. Her daughter was scared to tell and she has explained what happened, to the doctor.
30. The next witness, PW3 called by the prosecution was Dr. Toyin Olawale Jenyo. His evidence was that;
    1. He is a MBBS qualified doctor and has an experience of about 16 years. In 2016,he was working at the Nadi hospital and recalls examining the patient K.R. and completing the police Medical examination Form.
    2. He identifies the said Medical Examination Form and produces it as a part of his evidence marked PE1.
    3. He states that the incident was described by the mother of the victim and not by the victim herself. He explains that he could not understand or converse in Hindi and the child was not able to explain it to him.
    4. There were injuries on the vaginal area of the child and hymen was torn. It was a fresh tear at the 2 O’clock position. There was blood in the vagina. The pants the girl was wearing also stained with blood.
    5. Such injuries could have occurred by a forceful penetration of the vagina. It could not have happened due to any other reason. He states that the injuries were consistent with the given history. He has examined the patient at 13.35 hrs. on the 24^th of April 2016 and states that the injuries should have occurred within the last 24 hours.
       
31. In answering the cross examination, posed on behalf of the accused, the witness states that;
    1. Mother of the victim explained him the incident. The child was playing around and was not paying much attention to the conversation.
    2. When asked if the mother has given him a false story, would his opinion differ, the witness states that his opinion was based on his findings from the examination of the patient, but they were consistent with the given history.
    3. He admits that he did not directly communicate with the child as he could not understand Hindi and the child did not communicate in English.
    4. The witness stated that the redness in the vaginal area could have caused by fondling. It was suggested that fondling is not penetration. The witness states fondling could amount to penetration.
    5. If someone forcefully put his finger or a pen, into the vagina of a young child, there is a possibility of bleeding and the amount of bleeding may vary depending on many issues.
    6. The police officer who accompanied the patient and her mom, told him the background information, written there by the police.
       
32. With leading the evidence of PW1, PW2 and PW3 the prosecution closed their case. The Court being satisfied that there is sufficient evidence adduced by the prosecution covering the elements of the alleged offences, decided to call for defense, acting under the virtue of section 231(2), of the Criminal Procedure Act, explaining and giving his due rights to the accused.
    
33. The accused having understood his rights elected to give evidence and to call another witness on his behalf. His evidence was that;
    1. He knows Babita the PW2 as he was having a defacto relationship with her since 2006.
    2. When Babita came to Solovi, he used to visit her 2-3 times a week. He treated Babita’s daughter as his own daughter and she used to call him ‘papa’.
    3. He recalls the 23^rd of April 2016. It was a Saturday. After work he has gone to a party and come to the Babita’s place. He has spent some time with K.R. and taken her to the shop, to ask her of few things about the mother.
    4. He has taken her to the shop and driven slowly as he was asking her of the visitors to their house. They have gone to the shop and he has bought her a Rocky Road and he has bought himself an ice pop and drove back home.
    5. Having come home he has gone with Babita and the daughter to the laundry where Babita worked before, to settle a loan and thereafter to the Burger King to buy burgers. When they were coming out he has met a known couple from his village and their daughter and they asked him to come to their place next day.
    6. From there they have gone to Bowser to refill 4 liters of kerosene and gone home. The couple they met were Munesh Reddy and Pravin Lata and he has known them for about 15-16 years. When he came home they have had dinner and watched the TV for about 1 ½ - 2 hours and gone to the bed. Until that time, the child has been with them. He slept with Babita and the child slept in the other bedroom.
    7. On the next day, the Sunday he has woke up around 7.00am and has gone to his home at Uciwai. Having been at home for a while, he and his wife has gone to Munesh’s house. When there at the Munesh’s house Munesh has killed a goat. Babita has called him and told that he will come to know what happened in a while. Then he tried to call her 2-3 times but she has not answered the phone. So he has gone to the Babita’s house and her son has told that Babita has gone to the town. He has waited there till 3.30 and gone back to Munesh’s house.
    8. When at Munesh’s house, some people were drinking and he having had few drinks has left for his home, with his wife. He was arrested by the police at around 10.00pm on the Sunday night. He was caution interviewed on the next day.
    9. He denies raping K.R.
       
34. In answering the cross examination, posed on behalf of the prosecution, the accused states that;
    1. He calls K.R., ‘Guddy’ and she calls him ‘Papa’. He treated her like his own daughter and she treated him like her own father. He used to play with her and had a good relationship with her. She has no reason to make any false allegation against him.
    2. Before coming to Babita’s place he went for a party and had 6-7 half glasses of beer. He has gone to the shop with K.R at around 7.10-7.15pm. He did not take her to the shop close to the house as he wanted to talk with K.R.
    3. He has slept at about the midnight on that Saturday, the 23^rd of April 2016.
    4. He states though Munesh asked him to come to his place to discuss the issue of his relationship with Babita, they could not discuss much as Munesh’s parents were also there that day.
    5. He went to Munesh’s place on Sunday at around 9.30am and left from there at around 11.30am to Solovi and came back at around 3.00pm. Since then he was at Munesh’s house till he left with his wife at around 7.30pm.
    6. He admits that he has told the police that he went to bed on that Saturday at about 9.30pm and it was wrong.
       
35. The next witness called on behalf of the accused was Mr. Munesh Reddy. He states that;
    1. He knows Arun Kumar the accused for almost 15 years. He became aware of Arun Kumar’s arrest on 26^th Tuesday. Before that he has spoken to Arun on Saturday the 23^rd at around 8.30 at Burger King. When they were sitting in he met Arun together with his defacto partner and her daughter going out of the restaurant. He called Arun and asked him to come to his house on the following day.
    2. Arun has come to his place at around 9.00am and has left around 8.30-9.00pm that Sunday. While at there, Arun went somewhere and came back.
    3. He told Arun that what he does is wrong and his father too advised Arun on the said issue.
       
36. In answering the cross examination by the learned prosecuting counsel, the witness states that;
    1. He came to know of Arun’s arrest on Tuesday at around 3.00-4.00pm. Though they have a very close relationship and Arun and his wife was there at his place, entire day on Sunday, he came to know of Arun’s arrest after about 40 hours from his arrest.
    2. On Sunday He, his wife, his father and Arun’s wife advised Arun to stop his relationship with Babita.
    3. On that Sunday they have started drinking grog at around 1.00pm. After having few bowls Arun has left. Then again the witness states that Arun left around 9.30am and returned at about 11.30am.
    4. He further states that if someone says that they could not discuss the issue of Arun’s relationship that day, it’s a lie.
       
37. That was a summary of the evidence given by the witnesses. Please remember that I have only referred to the evidence which I consider important to explain the case and the applicable legal principles to you. If I did not refer to certain evidence which you consider important, you should still consider that evidence and give it such weight you may think appropriate. As I have already explained, which evidence you would accept and which evidence you would not accept is a matter for you, and you alone to decide.
    
38. Remember that you should first decide on the credibility and reliability of the witnesses who gave evidence in this case and accordingly decide what facts are proved and what reasonable inferences you can draw from those proven facts. Then you should consider whether the elements of the offences have been proved beyond a reasonable doubt. You should take into account my directions where relevant, in deciding whether the prosecution has proved all the elements.
    
39. The Accused has indicated his stance and it was that he did not do the alleged acts. Evan in case you do not accept the accused’s stance as true, you should not consider it in-order to strengthen the prosecution case. The accused need not prove that he is innocent. A person may lie as sometimes as it is easier than telling the truth. Therefore even you decide to not to accept the accused’s stance, you should not use it to overlook the weaknesses of the prosecution case if any.
    
40. With the submission of the accused’s stance, one of the three situations given below would arise;
    

(i) You may accept his stance and, if so, your opinion must be that the accused is ‘not guilty’.

(ii) Without necessarily accepting his stance you may think, 'well what he says could be true'. If that is so, it means that there is a doubt in your mind and if you can reason it out in your mind, and call it a reasonable doubt, again your opinion must be ‘not guilty’.

(iii) The third possibility is that you reject his stance. But, that itself does not make the accused guilty. Then the situation would then be that you should consider whether the prosecution has proved all the elements beyond a reasonable doubt. If the prosecution has proved all the necessary elements of the offence and also you reject the accused’s stance only, you should find the accused guilty of the alleged count.

41. Any re-directions?

42. Lady and Gentleman Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charge against the accused. When you have reached your separate opinion, you will come back to court and you will be asked to state your opinion.
    

43. Your opinion should be;

Whether the accused is guilty or not guilty of the alleged offences of Rape?

Chamath S. Morais
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions
Solicitors for the Accused : Messrs. I. Khan & Associates, Lautoka